Appeal from the Order of the Court of Common Pleas of Centre County, in case of The Board of Education of the Bellefonte Area School District v. The Bellefonte Area Education Association, an Unincorporated Association, Wayne A. Koch and Judith M. Massie, as Trustees ad Litem; and All Members of the Bellefonte Area Education Association, No. 9 October Term, 1972.
Thomas A. Walrath, with him William A. Hebe and Spencer and Gleason, for appellants.
John R. Miller, with him Miller, Kistler & Campbell, Inc., for appellee.
William Fearen, with him Cleckner & Fearen, for amicus curiae, Pennsylvania School Board Association.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr. disqualified himself and did not participate. Opinion by Judge Rogers. Concurring Opinion by Judge Kramer. Judge Crumlish, Jr. joins in this concurring opinion. Concurring and Dissenting Opinion by President Judge Bowman.
When Legislatures finally determine to adopt a wholly new concept of public management, they usually do so in terms more expressive of their fear of the unforeseeable harm which may result from the new policy than of their confidence in the good it will accomplish. Hence, such legislation is often tentative, imprecise, elliptical and incomplete, leaving the hard choices either to the improbable chance that they "may not come up," or to the courts. The Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.101 et seq., is an example of such legislation. It reverses the immemorial policy of state government to prohibit public employes from striking. It countenances strikes by public employes, but only upon the condition that certain
ill-defined procedures have first been accomplished; and it empowers the courts to enjoin perfectly legal strikes if the courts find that they create "a clear and present danger or threat to the health, safety or welfare of the public."*fn1
The court below in this case was called upon to determine both questions; that is, whether the procedures prerequisite to a legal strike were accomplished and, if so, whether, nevertheless, the strike should be enjoined as a clear and present danger or threat to the health, safety or welfare of the public.
The Bellefonte Area Education Association is the certified employe representative of the teachers, guidance counselors, school nurses and librarians of the Bellefonte Area School District. An agreement between the Association and the District, due to expire June 30, 1972, became the subject of collective bargaining negotiations between the parties commencing in February of 1972. After a short period of negotiations, a mediator was appointed by the Pennsylvania Bureau of Mediation who, after meeting with the parties and in accordance with Section 802 of the Act, infra, certified to the Pennsylvania Labor Relations Board on February 24, 1972 that an agreement had not been achieved. The Labor Relations Board did nothing and the parties continued to negotiate with help of the mediator from time to time, until the Association, after notice of its intention to do so, took its members out
on strike on September 11, 1972. On September 26, 1972, the School District filed its complaint seeking an injunction; and a preliminary injunction was granted on September 28, 1972, continued after a hearing on October 3, 1972 and made permanent on November 16, 1972.
The injunction entered in the court below was based upon the court's conclusion that the procedures prerequisite to the strike had not been wholly accomplished and its determination that the health, safety and welfare of the public was threatened or endangered.
We have carefully reviewed the record and have concluded that the facts and circumstances do not support the court's ultimate finding that the strike endangered or threatened the health, safety or welfare of the public. The strike was attended with no violence or, indeed, with anything which could be characterized as unpleasantness, except as the clash of wills and opinions evidenced in the testimony must have been disturbing to persons on both sides. The chancellor based his judgment that the public interest was endangered on two considerations. The first was that state reimbursement to the District would be lost if the District failed to provide 180 days of instruction during the school year ending June 30, 1973. On September 28, 1972, when the preliminary injunction was granted, 13 instructional days had been lost in the strike. However, there remained 15 days of summer vacation time and an unspecified number of days set aside for holidays during the remaining school term which could have been used to supply days lost by the strike. ...